[Cite as State v. Chatman , 2019-Ohio-5026.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

TEVIAN R. CHATMAN, Appellant. :

:

:

:

:

: CASE NO. CA2019-02-034

O P I N I O N

12/9/2019

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2018-08-1486

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Michele Temmel, 6 South Second Street, Suite 305, Hamilton, Ohi o 45011, for appellant

M. POWELL, J. {¶ 1} Appellant, Tevian Chatman, appeals from his convictions in the Butler County Court of Common Pleas following his guilty plea to two counts o f endangering children. For the reasons set forth below, we affirm Chatman's convictions. {¶ 2} In August 2018, Chatman was indicted on four counts of endanger ing children. Thereafter, in December 2018, Chatman pled guilty to two counts of endangeringButler CA2019-02-034

- 2 - children, one count in violation of R.C. 2919.22(B)(1), a secon d-degree felony, and one count in violation of R.C. 2919.22(A), a third-degree felony. In consideration of Chatman's guilty plea, the state agreed to dismiss the remaining two char ges, but expressly "reserve[d] the absolute right to file additional criminal charges if the v ictims were to die as a result of the injuries caused by [Chatman], as stated in the bill of part iculars (the "reservation provision")." {¶ 3} After a hearing, the trial court accepted Chatman's guilty plea and sentenced him to five years in prison for the violation of R.C. 2919.22(B )(1) and 24 months in prison for the violation of R.C. 2919.22(A). The trial court ordered the prison terms to be served consecutively, for an aggregate sentence of seven years in pris on. {¶ 4} Chatman now appeals, raising one assignment of error. {¶ 5} Assignment of Error No. 1: {¶ 6} MR. CHATMAN'S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND

VOLUNTARILY MADE. {¶ 7} Chatman argues that his guilty plea was not knowing, intelligen t, or voluntary

because the trial court failed to determine that Chatman subjec tively understood the effect of his plea. We find no merit to Chatman's argument. {¶ 8} When a defendant enters a guilty plea in a criminal case, the p lea must be knowingly, intelligently, and voluntarily made. State v. Butcher , 12th Dist. Butler No. CA2012-10-206, 2013-Ohio-3081, ¶ 8. "Failure on any of those po ints renders enforcement of the plea unconstitutional under both the United States Const itution and the Ohio

Constitution." State v. Payne , 12th Dist. Butler No. CA2015-12-219, 2016-Ohio-5470, ¶ 7. To ensure that a defendant's guilty plea is knowingly, intellig ently and voluntarily made, the trial court must engage the defendant in a plea colloquy pursua nt to Crim.R. 11(C). Id

. {¶ 9} As relevant here, pursuant to Crim.R. 11(C)(2), the trial court may not acceptButler CA2019-02-034

- 3 - a defendant's guilty plea without first addressing the defendan t personally and: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges an d of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition o f community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the right s to jury trial, to confront witnesses against him or her, to hav e compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. {¶ 10} A guilty plea is invalid if the trial court does not strictly c omply with Crim.R. 11(C)(2)(c), which requires the trial court to verify the defen dant understands the constitutional rights he is waiving. State v. Shavers , 12th Dist. Butler No. CA2014-05-119, 2015-Ohio-1485, ¶ 9. However, the trial court need only substa ntially comply with the nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and (b). Id . Under the substantial compliance standard, an appellate court must review the totality of the circumstances surrounding the defendant's plea and determine wh ether the defendant subjectively understood the effects of his plea. State v. Givens , 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-361, ¶ 12. {¶ 11} It is undisputed that the trial court strictly complied with th e constitutional requirements of Crim.R. 11(C)(2)(c). With respect to the requi red notifications regarding constitutional rights, the trial court advised Chatman that a g uilty plea would waive his rights to: a trial of the charges; require the state to prove his guil t beyond a reasonable doubt; confront witnesses against him; subpoena witnesses in his defen se; remain silent; and takeButler CA2019-02-034

- 4 - the stand in his own defense. Chatman affirmed that he underst ood the rights he was waiving. {¶ 12} Instead, Chatman argues on appeal that the trial court erred byfailing to inform him that he could be charged with murder and "face a pos sible life sentence." Thus, Chatman maintains "there is no conceivable way [he] understood the effect of pleading guilty[,]" and, as a result, the trial court failed to substant ially comply with Crim.R. 11(C)(2)(b). {¶ 13} According to the Ohio Supreme Court, in order to satisfy the re quirement of informing a defendant of the effect of a plea, a trial court mu st inform the defendant of the appropriate language under Crim.R. 11(B). State v. Jones , 116 Ohio St.3d 211, 2007-Ohio6093, ¶ 25. In relevant part, Crim.R. 11(B) states that a plea of guilty is a complete admission of the defendant's guilt to the offense or offenses t o which the plea is entered. "The information that a guilty plea is a complete admission of guilt, along with the other information required by Crim.R. 11, ensures that defendants ent er pleas with knowledge of rights that they would forgo and creates a record by which appe llate courts can determine whether pleas are entered voluntarily." State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio4415, ¶ 10-11. Under this standard, a slight deviation from th e text of the rule is permissible as long as the totality of the circumstances indicates that "th e defendant subjectively understands the implications of his plea and the rights he is w aiving." State v. Nero , 56 Ohio St.3d 106, 108 (1990). {¶ 14} Here, the record indicates that on December 10, 2018, Chatman s igned a plea of guilty and jury waiver (the "plea form"). Pursuant to the plea form, Chatman acknowledged that he was entering guilty pleas to two charges o f endangering children in exchange for the dismissal of the remaining charges of the indi ctment. Chatman further acknowledged that the state reserved the right to file addition al charges against him if theButler CA2019-02-034

- 5 - victims were to die as a result of their injuries. {¶ 15} At the plea hearing, the trial court confirmed that Chatman was entering a plea of guilty to two counts of child endangering and advised Chatma n that "a plea of guilty is a complete admission of guilt." Chatman responded that he unders tood. Regarding the plea form, the trial court engaged in the following discussion with Chatman: The Court: Okay. All right. Let's talk about something a litt le less complicated. Let's talk about the plea form for a second. I'm going to show you this document. It's two sides. Have you seen that before? The Defendant: Yes. The Court: Did you have a chance to read it? The Defendant: Yes, sir. The Court: Did you discuss it with your lawyer? The Defendant: Yes. The Court: Did he answer all of your questions? The Court: Yes, sir. The Court: Once you discussed the plea form with your attorney, did you understand what it said and what it meant? The Defendant: Yes, sir. The Court: Back side of the document there are three signatures. * * * The very first signature would be to your lef t. I'm pointing at it. It appears to be your signature. Did you sign the plea form? The Defendant: Yes, sir. The trial court then asked Chatman if he had any questions invo lving the plea or the plea form. Chatman responded, "no," and confirmed that he had no qu estions. {¶ 16} The record further reflects that the state noted its reservatio n to file additional charges pursuant to the plea form near the conclusion of the pl ea hearing. In doing so, the trial court stated the following:Butler CA2019-02-034

- 6 - The Court: Anything else we need to address? [The State]: And Your Honor, I just want to verify. I assume you went over this, but I had stepped out of the room briefly. Abo ut the State reserving the right to file additional charges. The Court: I did not cover it. [The State:] Okay. The Court: I know that's on the plea form * * * as part of the plea agreement that's been signed off on, so that is incorporated in to the plea. At that time, Chatman did not dispute or otherwise respond to t he trial court's statement. {¶ 17} After a review of the record, we find that Chatman's plea was k nowingly, intelligently, and voluntarily ent ered and that the trial court substantially complied Crim.R. 11(C)(2)(b). Chatman argues the trial court erred by failing t o discuss the reservation provision at the plea hearing and failing to inform Chatman of the potential penalties he could face if the state filed additional charges. However, suc h a discussion is not necessary to comply with Crim.R. 11(C)(2) or to inform Chatman of the eff ect of his plea. Rather, the trial court was required to inform Chatman that his guilty plea was a complete admission of his guilt to the offenses of children endangerment, which the r ecord indicates it did. As such, it is evident from the record that the trial court suffic iently informed Chatman of the effect of his plea, as defined by Crim.R. 11(B), and that Chatm an affirmatively responded

to the trial court's information. {¶ 18} We also disagree with Chatman's contention that the trial court "wholly failed to inquire as to whether * * * Chatman understood" the reservat ion provision. The record reflects that the state included a handwritten provision on the plea form that reserved its right to file additional charges against Chatman under certain circumstances. Chatman affirmatively stated at the plea hearing that he had read the p lea form, front and back, understood what the form said, and understood what its terms me ant. Chatman furtherButler CA2019-02-034

- 7 - indicated he had discussed the plea form with his attorney, who had answered his questions. When considering the statements made at the plea he aring, and Chatman's indication that he reviewed and understood the plea form, Chatm an's assertions of ignorance regarding the consequences of his guilty plea are wit hout merit. While the trial court did not address each provision of the plea form individua lly, Chatman confirmed at the hearing that he had reviewed the form in its entirety and u nderstood its terms. Furthermore, Chatman expressed no confusion regarding his guilt y plea or the consequences thereof at any stage of the proceedings, including after the trial court and the state noted the state's ability to file additional charges. As a result, there is nothing in the record to adequately support the assertion that Chatman did not understand the effect of the guilty plea to the endangering children charges or that the state was reserving the right to file additional charges if the victims were to die as a result of their injuries. {¶ 19} Lastly, despite Chatman's claims that the plea form should have explained the maximum sentence he could face if the state brought murder char ges against him, such an explanation is not required for the state to reserve its right to file additional charges after Chatman's plea. State v. Dye , 127 Ohio St.3d 357, 2010-Ohio-5728, ¶ 26; State v. Carpenter , 68 Ohio St.3d 59 (1993), syllabus. Moreover, the fact that t he state reserved the right to file additional charges against Chatman is unrelat ed to the penalty he faced for the offenses that were the subject of his plea. We further not e that any discussion concerning the maximum sentence for future unknown charges woul d have been speculative and difficult for the trial court to explain. That is because the severity of and penalty for any future charges were unknown at the time of Chat man's plea. As such, the trial court did not err in declining to explain the potential m aximum penalty for any future charges brought against Chatman. {¶ 20} As a result, we find the totality of the circumstances surround ing Chatman'sButler CA2019-02-034

- 8 - plea demonstrates that he subjectively understood the effects o f his plea, including the state's reservation of the right to file additional charges. C onsequently, the trial court substantially complied with Crim.R. 11(C)(2)(b), and sufficient ly informed Chatman of the effect of his guilty plea to the two counts of children endange rment. {¶ 21} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.